Who Should Elect the
President? The Case Against the Electoral College

by CAROLYN JEFFERSON-JENKINS

National Civic Review, Summer 2001,
volume 90, issue 2, page 173

We the people do not directly elect the president of the United States; the electoral
college does. This election method may satisfy some people, but a desire for change is in
the air. In Congress, in state legislatures, in newspapers, in magazines, and on
television, the issue of electoral college reform is being widely discussed.

The crux of the problem--for which every
thinking citizen should have an informed answer--is this: What method of electing the
president best serves the people of the United States in the twenty-first century? The
electoral college, a curious vestige of the eighteenth century, violates the principle of
one person, one vote. The time has come to abolish it.

When the founders set up that system,
democracy was practiced differently from today Women could not vote; African Americans
could not vote; people without property could not vote. The men who wrote the Constitution
were deeply mistrustful of popular opinion. Hence they set up the electoral college,
theoretically composed of wise and prudent men who could be trusted with the job of
picking a president. U.S. senators weren't chosen directly by the people, either; state
legislatures did that.

But in the two centuries since, the
franchise has greatly expanded. Blacks won the constitutional right to vote in 1870, women
in 1920, and eighteen-year-olds in 1971. Senate races yielded to direct election early in
the twentieth century. Today, with universal public education, newspapers, radio,
television, and the Internet, citizens can see and hear candidates in a way unimaginable
in 1787. The idea that the people aren't qualified to choose their president directly does
not hold up. The course of American history has been inexorably toward greater fairness,
uniformity, and inclusiveness in our democracy. Yet the system for electing the most
important representative of the American people is stuck in a time warp.

Among the arguments advanced in favor of
keeping the electoral college are that it protects the interests of the states, especially
small states; that it's a key part of our federal system; and that minorities and others
in large urban areas would lose influence without it. The argument for abolishing it, in
favor of direct election of the president, is that the electoral college violates the
fundamental principle of one person, one vote. I explore these arguments in detail in this
article. But the important fact to stress at the outset is that simple fairness demands
change. We need to trust the voters in a way that the founders, two centuries ago, did
not.

The Electoral College Method

Before judgment can be made as to whether
or not the electoral college method of electing the president should be changed, its
merits and deficiencies must be identified and evaluated. For a thorough assessment, it is
necessary to know something about the circumstances under which the system was
established, what sort of change has occurred since its inception, and how the system
operates now.

Article II, Section 1, of the Constitution
states that the president shall be chosen by a group of electors appointed in each state,
in a manner prescribed by the state legislatures, equal to the number of senators and
representatives of each state in Congress. It assigns the counting of electoral votes to
Congress and provides for the election of a president by the House of Representatives and
of a vice president by the Senate in case either one does not receive the votes of a
majority of the electoral college. Currently the magic number for a majority of electors
is 270.

The idea of a strong, elected executive
for a nation was completely revolutionary in 1787, when the Constitution was written. The
United States of America was held together by loose Articles of Confederation that
included no provision for any executive department. Crown-appointed colonial governors had
been succeeded by weak executives chosen by strong state legislatures. Fear of monarchy
was still very much alive.

Only indirectly do we the people choose
the president of the United States every four years. The choosing process has developed
into a mixture of procedures born of a complicated ancestry: the Constitution, state laws,
political parties, rules and customs, political expediency and mere tradition.

The first three and most visible steps in
the process are (1) campaigns by presidential candidates in state primaries and caucuses
for delegates to the national party conventions, (2) selection of nominees for president
by national conventions in the summer of a presidential election year, and (3) conduct of
campaigns by nominees for the people's votes in the general election. But well before
Election Day in November, the less visible parts of the process get under way

First, political parties in each state
nominate, by convention, committee, primary, or in some instances petition, groups of
presidential electors, equal to the number of senators and representatives each state has
in Congress (the District of Columbia gets three). Presidential electors as a group have
come to be known as the electoral college, even though it never meets as a national body.

Then, on Election Day--the first Tuesday
after the first Monday in November of a presidential election year--the people in each
state select, by a simple plurality the group of presidential electors pledged to one of
the candidates. The people do not vote to choose a president but rather to choose electors
who will choose one.

In the period between election of the
electors and their casting of electoral votes, bargaining for electoral votes can take
place because under the Constitution the electors are free agents. Within each state, the
winning group of presidential electors meets in the state capital on the first Monday
following the second Wednesday in December. Each elector normally casts one vote for the
presidential nominee of his or her party. Almost always, electors vote automatically
rather than independently--in some states by custom and in others by party pledge or state
law.

In every state except two (Maine and
Nebraska, which allot their electors proportionally by congressional district), all of a
state's electoral votes are cast for the winner of the popular vote. Ballots cast for the
losing candidate aren't counted at all in the electoral sweepstakes. This winner-take-all
system serves to disenfranchise those who voted for the candidate who lost their state.

Results of the mid-December voting in each
state are sent to the Congress. On January 6, in the presence of the Senate and the House,
the electoral vote total for each presidential nominee is enumerated and officially
announced. If one nominee receives the votes of a majority of the presidential
electors--270 votes out of 538--a president has been elected. If no nominee receives the
votes of a majority of the electors, the House of Representatives chooses the president
from among the three top presidential vote getters in the electoral college.

To win, a nominee must get a majority of
the votes cast. Each state delegation in the House has only one vote; but if the
delegation is evenly divided, it loses the vote. Since a quorum for this election is
"a member or member from two-thirds of the states," it is possible that
thirty-four members of the House of Representatives could constitute the body to decide on
a president.

First submitted in Congress in 1797,
reform of the electoral college system is the most frequently proposed constitutional
reform. More than a thousand bills--many of them constitutional amendments--have been
introduced in Congress to change how we elect our presidents. Why has success for any kind
of reform been so elusive?

It is difficult to amend the U.S.
Constitution. In the case of reforming the electoral college system it has been impossible
for members of the jurisdictional committees of Congress, let alone all of Congress, to
agree on a method. The right combination of pressure, people, politics, and priorities
that must exist to get a constitutional amendment through Congress has not yet occurred.

Major Policy Questions: Choices to
Be Made

Electoral college reform is a complex,
multifaceted subject, involving judgment concerning political principles as well as
decisions about practical measures and the likely effect of any proposed revision. Using
the electoral college to elect the president is a state-related intermediate step between
the act of voting by the people and actual election of the president. A preliminary
question for consideration is whether, in the matter of electing the president, one is
willing to accept any alteration in the relationships among the people of the United
States, the states, and the national government from how the Constitution designated these
relationships in 1787.

If one is dissatisfied with the status quo
but unwilling to consider any alteration in these relationships, then one must consider
reform in terms of modification within the existing system. For those who desire
substantial change, the principal choice is whether or not there should be a state-related
step. In other words, should the electoral vote be retained, or should some other
technique be designed to involve voters directly? If one chooses to retain the electoral
vote, then one must make other choices about its allocation and counting and whether there
should be electors to cast the electoral votes. The basic alternative to a process with a
state-related step is direct popular vote. This alternative means that states, as units,
would have no direct role in a presidential election. They would have only an indirect
role, that of setting voting qualifications and administering the election itself.

This discussion of electoral college
reform considers three major policy questions. First, how should federalism, states'
rights, and the popular will relate to electing the president? Second, what should the
roles of the federal government and the states be regarding voting qualifications and
actual conduct of a presidential election? Third, what effect on political parties does
direct popular election of the president have?

Federalism, States' Rights, and the
Popular Will. Awareness of how indirectly the people of this country elect their
president comes as a shock to most people. Less well known is the fact that a popular vote
for the president, direct or indirect, is not embedded in the Constitution and therefore
theoretically could disappear in any state, or all states, at any time. Just last
December, the Florida legislature was prepared to nullify the popular vote, the outcome of
which was still in contention, and name its own slate of electors--although it stopped
short of taking that step. That the states now "appoint" their presidential
electors by a statewide popular vote is political happenstance.

In the minds of some, there is a question
of whether our form of government as a federal republic is safeguarded by having the
electoral college. According to this view, the fact that this country is a federation of
states, and that the Constitution assigns certain powers to the federal government while
others remain with the states, is of more importance than direct election of the president
based on the principle of one person, one vote. Others believe that a decisive role for
the states was appropriate for a fledgling federal government in 1787, but perhaps a
different balance is needed in the twenty-first century to preserve the freedoms outlined
two hundred years earlier.

Another question pertaining to federalism
is whether there is still a basic conflict in this country between the interests of large
and small states. Some people believe that although there were substantial differences
when the Constitution was written, in this century the interests of the people of a small
state as far as electing a president are concerned parallel those of the people of a more
populous state. Others believe that a basic conflict still exists--and they use that
conviction in arguing for keeping a state-related step in electing a president.

The One-Person, One-Vote Principle.
The one-person, one-vote concept of political equality set out in the U.S. Supreme Court
case Gray v. Sanders is often cited by those who believe that an intermediate
state-related step--with or without a winner-take-all method of allocating electoral
votes--creates inequality among voters in a presidential election.

One person, one vote is the guiding
principle of our representative democracy Through decades of struggle, this principle has
now been established for elective offices across the land. The Constitution originally
provided for the Senate to be elected by state legislatures. The Seventeenth Amendment,
ratified in 1913, codified direct election by the people of the states. Reynolds v. Sims
(1964) required that state legislatures follow the principle of one person, one vote.
Other cases required application of this principle to other elected offices, including the
House of Representatives.

The Winner-Take-All System. The
winner-take-all system, in which all of a state's electoral votes go to the winner of the
popular vote, disenfranchises those who voted for other candidates in that state. Their
votes simply don't count. This fact lessens voter turnout and affects how campaigns are
run. If one or the other major party is traditionally victorious in a particular state,
there is arguably less motivation for a citizen in that state to vote, no matter which
candidate he or she might support. If that party customarily wins, why bother to vote? If
it customarily loses, again, why vote? Supporters of third-party candidates face even more
daunting prospects. The campaign focus on swing states with a large number of electoral
votes may also exert a depressive effect on voter turnout as many other states receive
only minimal attention at best from the major-party candidates.

Lose the Popular Vote, Win the
Presidency. Finally, the fact that votes for the losing candidates in each state
don't count, can--and as recently as Election 2000 has--resulted in the victory of a
president who lost the nationwide popular vote.

This can happen only if there is a
state-related step in the election process. Therefore, the only reform proposal that
prevents this outcome is direct election of the president. Whether the possibility of a
nonplurality president should be a great concern is frequently debated. Some people feel
the country does not unite behind such a president and the national stability is therefore
endangered. Others are convinced that a slight margin of the popular vote one way or
another won't harm the nation's political health.

The Federal Role in National
Elections

The choices to be made in regard to the
federal role in a national election concern setting voter qualifications for the
presidential election and the conduct of the election, especially counting the votes and
setting standards for a vote challenge. These considerations come to the fore when a
direct popular election is under discussion.

Conduct of the Election and Counting
of Votes. Since the federal government has no existing election machinery, it is
likely that states would continue to conduct presidential elections if the country decided
on a system of direct popular election. As far as counting the votes is concerned, U.S.
Supreme Court decisions and civil rights legislation have established the federal right to
intervene in the states' conduct of a federal election in matters relating to fraud. But
recourse through the courts does not satisfy some advocates of the direct popular vote,
who desire a uniform and nationally policed system for a presidential election. Opponents
of such a system, such as the American Jewish Congress, contend that oversight of the
voting process by the federal government is inconsistent with federalism. Others believe
that a constitutional amendment setting up a uniform and nationally policed system for
presidential elections would be a natural next step in developing the principle of one
person, one vote. St ill others don't agree that the federal government has to assume a
comprehensive role in conducting a presidential election.

Opponents of the direct popular vote for
president stress the possibility of endless delays caused by multiple recounts. Advocates
of the popular vote, on the other hand, declare that there can be equal uncertainty under
the current system if recounts are needed in large, pivotal states, such as Florida in
2000. Some people believe the federal government should set standards for acceptable
reasons for contesting a vote and for resolving challenges, including a specific time
limit for resolution.

Voter Qualifications. The
principal controversy regarding voter qualification raised by the prospect of direct
popular election of the president concerns who should set the standards, the federal
government or the states.

In Article I, Section 4 of the
Constitution, responsibility for prescribing the time, place, and manner of holding an
election for senators and representatives is given to the legislature of each state,
"but the Congress may at any time by law make or alter such regulations, except as to
the places of choosing senators."

Since the Constitution also gives
legislatures the power to decide how presidential electors are chosen, to date they have
set the qualifications for voting in a presidential election. A number of resolutions have
been introduced in Congress, however, to amend the Constitution by setting federal
qualifications of various kinds, such as age and residency.

Effects on Political Parties of
Direct Popular Election of the President

Partly because political parties were not
yet in existence when the Constitution was written, their development has had a profound
effect on the presidential election process. Methods of nominating presidential candidates
and campaigning for election owe their present form to the ways in which political parties
have evolved. Conversely, the electoral college system has had a profound effect on the
two-party system. Any change in the method of election would leave a deep mark on our
major political parties, on splinter parties and their possible proliferation, on how
candidates are nominated, and on how they campaign. Most political observers want to see
the two-party system preserved no matter what reforms are adopted. Proponents of the
direct popular vote say this system would not encourage proliferation of splinter parties.

Direct Election Is the Most
Representative System

In the summer of 1968, the League of Women
Voters began a study of the electoral college to determine whether changes needed to be
made in the method of electing the president. The results of this study are the foundation
for our position that direct popular election of the president is the best method for a
system of representative government that is responsive to the will of the people. Leagues
in more than one thousand communities across the country participated in the study and
came to the same conclusion.

Since 1970, the league has supported
amending the Constitution to abolish the electoral college and establish direct popular
vote for the president and vice president of the United States. Political developments
since the 1970s have only underscored the need to eliminate the electoral college system.
The downward trend in voter participation, coupled with increased cynicism and skepticism
among the public as to the ability of elected leaders to provide meaningful
representation, were all warning signs prior to the startling developments of Election
2000.

We no longer need to imagine what it would
be like to have one candidate win the popular vote and another candidate win the
presidency Such an outcome has happened in the past, in 1824, 1876, and 1888. In Election
2000, history repeated itself. Like Rutherford B. Hayes more than a century earlier,
George W Bush lost the popular vote but won the White House. We all saw the public
confusion--and the outrage among voters who felt that Al Gore, who won the popular tally
by more than five hundred thousand votes, shouldn't have ended up as the loser.

Now let's go one step further. Consider a
close race for president in which no candidate earns the necessary electoral college votes
to win. This has happened twice before in our nation's history, in the elections of 1800
and 1824, when the House of Representatives chose Thomas Jefferson and John Quincy Adams,
respectively The league believes both of these men were fine presidents, but we are deeply
troubled by the prospect that some future winner of the popular vote could lose the
election in a House dominated by one or another political party

In the twentieth century, we only narrowly
avoided a series of constitutional crises in which the electoral college system--or the
House of Representatives--could have overruled the popular vote:

In the 1916 presidential election, a shift
of only 2,000 votes in California would have given Charles Evans Hughes the necessary
electoral votes to defeat Woodrow Wilson, despite Wilson's half-million-vote plurality
nationwide.

In 1948, a shift of only 30,000 votes in
three states would have delivered the White House to Governor Dewey, in spite of the fact
that he trailed President Truman by some 2.1 million popular votes.

In 1960, a shift of only 13,000 votes in
five states would have made Richard Nixon president.

In 1968, a shift of 42,000 votes in three
states (Alaska, Missouri, and New Jersey) would have denied Nixon an electoral college
victory and thrown the election into the House of Representatives.

In 1976, a shift of only 9,300 votes would
have elected Gerald Ford, even though he trailed Jimmy Carter in the popular vote by 1.6
million ballots.

Three Reasons the Current System
Is Unfair

In testimony before Congress in 1997, the
League of Women Voters pointed out that apart from the public outcry that would be caused
by circumvention of the popular will, there are a number of other serious flaws in the
electoral college system. The electoral college system is fundamentally unfair to voters.
In a nation where voting rights are grounded in the one-person, one-vote principle, the
electoral college is a hopeless anachronism.

First, a citizen's individual vote has
more weight if he or she lives in a state with a small population than if the citizen
lives in a state with a large population. Moreover, the electoral vote does not reflect
the volume of voter participation within a state. If only a few voters go to the polls,
all the electoral votes of the state are still cast. Finally, the electoral college system
is flawed because the Constitution does not bind presidential electors to vote for the
candidates to whom they have been pledged. For example, in 1972, 1976, 1988, and 2000,
individual electors who were pledged to one of the top two vote-getters cast blank ballots
or voted for also-rans. "Faithless electors" in a close race could cause a
crisis of confidence in our electoral system.

For all these reasons, the league believes
that the presidential election method should incorporate the one-person, one-vote
principle. The president should be directly elected by the people he or she will
represent, just as other federally elected officials are in this country. Direct election
is the most representative system. It is the only system that guarantees the president
will have received the most popular votes. It also encourages voter participation by
giving voters a direct and equal role in electing the president. Of course, a direct
popular vote does not preclude the possibility of a close three-way race in which no
candidate receives a majority of the votes. The league believes that if no candidate
receives more than 40 percent of the popular vote, then a national runoff election should
be held.

Any substantial change in the method of
electing the president and vice president must be accomplished through amending the U.S.
Constitution, which requires a two-thirds vote of both the U.S. Senate and the U.S. House
of Representatives followed by ratification by the legislatures of three-fourths of the
states. But what if amending the Constitution proves politically impossible? Reforming the
electoral college can be done without changing the Constitution. Until there is a
constitutional amendment to abolish the electoral college, the league supports prompt
establishment of clear rules and procedures for the House and Senate to handle their
responsibilities in electing the president and vice president if no one receives a
majority in the electoral college.

Other proposals short of a constitutional
amendment could make it more likely that the electoral vote reflects the popular vote.
States could act, on their own, to make a variety of changes. Some reformers warn,
however, that state-by-state actions might give us a crazy quilt of election laws that
make things even more complicated. They argue that either all the states should do the
same thing, or things are better left as they are.

States could, if they wanted, make these
changes:

Congressional district proportionality Each
congressional district elects one elector. The two "Senate" electors are
apportioned to the statewide winner. (There's a downside to this method, however.
Redrawing Congressional districts--old-fashioned gerrymandering--is raised to the
presidential level. With the Senate electors going to the statewide winner, it is still a
winner-take-most system.)

Statewide proportionality. The number of
electors within a state is awarded in proportion to each candidate's statewide totals.

Binding of electors. Electors might be
required by law (with penalties attached for noncompliance) to vote for their candidate,
ending the unpredictable effect of the faithless elector.

Abolition of electors. Abolition requires a
constitutional amendment. We recognize that it is extraordinarily difficult to amend the
Constitution; the league had seventy-two years of experience in trying to win the right
for women to vote. Nevertheless, the time for change has come. We urge the House and
Senate to pass a constitutional amendment abolishing the electoral college and letting
Americans, for the first time ever, vote directly for their president.

Carolyn Jefferson-Jenkins is the
president of the League of Women Voters of the United States.